Scrivo v. Brewer

• Decision Date: 07 March 2022
• Docket Number: 19-10730
• Court: U.S. District Court — Eastern District of Michigan
• Parties: DONNA KAY SCRIVO, Petitioner, v. SHAWN BREWER, Respondent.

DONNA KAY SCRIVO, Petitioner, v. SHAWN BREWER, Respondent.

No. 19-10730

United States District Court, E.D. Michigan, Southern Division

March 7, 2022

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

DAVID M. LAWSON, UNITED STATES DISTRICT JUDGE

Petitioner Donna Kay Scrivo was convicted of drugging and suffocating her adult son and dismembering his body. Her first-degree premeditated murder conviction earned her a life sentence without the possibility of parole. After unsuccessfully challenging her convictions on appeal in the Michigan courts Scrivo filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. She argues that her lawyer's performance did not measure up to constitutional standards in several instances, the prosecutor committed misconduct that tainted the proceedings, and the evidence was not sufficient to prove her guilt. The state presented a compelling circumstantial case; and although the trial was not perfect and the prosecutor crossed the line a few times into unprofessionalism, the state court's rejection of Scrivo's claims of error was consistent with federal law. The petition, therefore, will be denied.

I.

The gruesome details of the crime were summarized on direct appeal by the Michigan Court of Appeals:

Defendant's convictions arise from the death of her son 32Byear-old Ramsay Scrivo, and the dismemberment of his body, the remains of which were discovered in 12 pieces near Fred Moore Highway and Allington Road in St. Clair County. The prosecution presented evidence that defendant drugged her son with Xanax [a prescription drug used to treat anxiety, which can cause extreme drowsiness, confusion, and coma], strangled him, dismembered his body, and scattered the remains along the highway.

Defendant was living with the victim at the time of his death. The victim's neighbors testified that they last saw him on January 24, 2014. On January 30, 2014, defendant was observed in a silver SUV along Fred Moore Highway and Allington Road driving slowly and disposing of something from the SUV. Earlier that day, and also on the previous day, defendant was seen by the victim's neighbors loading large garbage bags into her vehicle. Later that day authorities found the victim's remains scattered in bags along Fred Moore Highway and Allington Road. Along with the victim's remains, authorities also found a power saw that was the same model number that witnesses recalled defendant purchasing from a Lowe's store earlier that week. A subsequent search of the victim's home did not reveal any large blood stains, but investigators did testify to a strong smell of bleach and the existence of small blood stains. One of the victim's neighbors also testified that between January 25 and January 30 she heard a saw being used and that during the same time, she smelled both a burning and chemical odor emanating from the victim's apartment.

The medical examiner who performed the victim's autopsy, Dr. Daniel Spitz, testified that the cause of death was asphyxiation and that, due to large amounts of Xanax in his system, he believed that the victim had been drugged before being killed. Defendant had a prescription for Xanax and a search revealed 10.5 pills missing from her most recent prescription. An analysis of defendant's and the victim's cell phone records also did not reveal any calls made from the defendant to the victim after January 24 despite several witnesses testifying that defendant asked them if they had seen the victim and defendant's filing of a missing person's report for the victim.

Defendant testified in her own defense. According to her testimony, on the morning of January 26, 2014 she observed a masked man in the victim's room who said he was going to kill the victim. Defendant testified that this man tied her to the bed and then brought her back into the victim's bedroom when he had finished killing the victim. Defendant testified that the man remained five days but that she never saw his face due to the mask he was wearing. Defendant stated that the man then made her help dispose of the victim's body threatening to harm further members of her family if she did not comply.

People v. Scrivo, No. 330292, 2017 WL 2664753, *1-2 (Mich. Ct. App. June 20, 2017) (footnotes omitted).

The jury did not accept the petitioner's defense and convicted her of first-degree premeditated murder, mutilation of a human body, and removing a body without medical examiner permission. On direct appeal, Scrivo presented nearly the same claims she asserts here, which were rejected by the court of appeals. Id. at *2-8. The Michigan Supreme Court denied leave to appeal. People v. Scrivo, 501 Mich. 982, 907 N.W.2d 563 (2018).

Scrivo's timely habeas corpus petition asserts these claims:

I. She was denied her right to the effective assistance of counsel where trial counsel failed to object to numerous instances of prosecutorial misconduct, failed to call a Xanax expert witness, failed to call a weight or strength expert witness, failed to call a bruise expert witness, failed to call Jessica Drula as a witness, failed to request a mistrial, failed to object to the admission of the autopsy photos, failed to object to tainted evidence, and failed to persuade her not to testify.

II. She was denied her right to a fair trial by the cumulative effect of the prosecutor's improper cross-examination of her regarding her right to remain silent and commenting on her right to remain silent, improper introduction of evidence merely to show that she was a bad person, and improper yelling and arguing with witnesses.

III. The evidence was not sufficient for a rational trier of fact to find her guilty beyond a reasonable doubt. The circumstantial evidence was not sufficient for a rational trier of fact to find beyond a reasonable doubt that she drugged her son with Xanax in order to render him unconscious, then strangled him, carried him to the bathroom, and put him in the bathtub.

Pet. at vii, ECF No. 1, PageID.22.

In his response, the warden argues that some of the instances of prosecutorial misconduct were not brought to the state court's attention by contemporaneous objection or on appeal, and therefore they are subject to the defense of procedural default. The other claimed constitutional violations, he says, are meritless.

The “procedural default” argument is a reference to the rule that the petitioner did not preserve properly some of her claims in state court, and the state court's ruling on that basis is an adequate and independent ground for the denial of relief. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Court finds it unnecessary to address the procedural question. It is not a jurisdictional bar to review of the merits, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits, ” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). The procedural defense will not affect the outcome of this case, and it is more efficient to proceed directly to the merits.

II.

Certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the standard of review federal courts must apply when considering an application for a writ of habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court may grant relief only if the state court's adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or if the adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

“Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” White v. Woodall, 572 U.S. 415, 419 (2014) (quotation marks and citations omitted). “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). The distinction between mere error and an objectively unreasonable application of Supreme Court precedent creates a substantially higher threshold for obtaining relief than de novo review. Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law “must have been objectively unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (quotation marks omitted)). The AEDPA imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be “given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010).

A.

Scrivo argues that the state prosecutor, William Caltaldo, engaged in misconduct by questioning her and commenting on her post-arrest silence, arguing with and yelling at witnesses and introducing improper character evidence, all that conduct deprived her of the right to a fair trial. The Michigan Court of Appeals was critical of some of the prosecutor's conduct, but it found that the errors were harmless because of the strength of the evidence...